Thursday, December 14, 2006

A Few More DNA Items

Some other items from the motion:

1.) DNA Security included none of its written communications with Nifong, Gottlieb, or any other representative of Durham in the supposedly comprehensive material turned over to the defense. The pattern throughout this case: information that Nifong has had pried out of him has almost always been highly damaging to the prosecution.

2.) DNA Security appears to something of a fly-by-night company--one that had financial problems almost from the start. According to this article, the company originally was located in its founder's "garage," and owner Brian Meehan had to sell the company to obtain necessary capital.

3.) The Soucie notes are--not for the first time in this case--damaging to Nifong, particularly in their statement that Meehan would lower his normal rates because he wanted to be involved in the case.

4.) The transcript of Nifong's attempts to avoid turning this material over to the defense looks very troubling in retrospect. It's hard to imagine that a concern with privacy motivated the reluctance of either Nifong or Meehan.

5.) The SBI notes had an intriguing line: "want to prove fingernail's are (v) and prove (v) was in the bathroom." Not exactly an unbiased scientific source.

6.) Why did Nifong choose DNA Security--which appears to be a fairly small company, located in Burlington, not exactly the state's scientific or population center?

“I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State's case, then the defendant is clearly entitled to have it; if it is not damaging to the State's case, why should it matter if he gets it?”

1. Starting a company out in a garage is actually a fairly common practice. Perhaps you academic types are not familiar with what goes on in the real world. 2. Of course a company would want to be involved in a high profile case. It brings publicity. In the real world, unlike academics, companies have to market themselves. 3. Finally, the company was recommended to Nifong by the North Carolina Bureau of Investigation. A simple Google search would have found that information. http://www.wral.com/news/9334003/detail.htmlGod forbid you do any research that undermines your personal agenda.

Are you also of the group that insists that the young men must have been wearing space suits, since there was none of their DNA found on the accuser? Are you also in the group that believes it is OK for the prosecution to withhold evidence and lie about it? Just curious.

I am 11:31. I think the players are innocent and Nifong is corrupt. That, however, does not justify the ridiculous allegations and insinuations that Johnson is prone to making. Johnson appears to have no interest in the facts, only in promoting grand conspiracies. 11:33 - Please respond to my three points. How does being a private startup, wanting publicity for a company, and being recommended by the NC Bureau of Investigation reflect poorly on the integrity of a company?

1. Starting a software or house cleaning service from a garage is one thing. Starting a lab that performs delicate and sophisticated testing in a garage is another thing entirely. 2. It's strange that the company offered the price break when the DA contacted him. It's also strange that a professional scientist would so opening admit that he wanted to be part of the case. I am a professional who must comply with pro. standards and this type of pricing deal would be considered outside the ethics. I wonder what the medical ethics say?3. Anything that comes out of NC public service is not very impressive. This information is extraneous to the arguement.

It is quite honorable to start a business out of one's garage. That's how Hewlett Packard started. But just like HP recently violated the civil liberties of its Board members in order to further its agenda, so it appears Meehan conspired with Nifong to deny the Duke Three their civil rights.

I also started my business in my garage and wanted to get involved in "high profile" jobs for the publicity. However, I never tried to buy my way in with reduced fees or withheld information that would be useful, or damaging, to any individual. God forbid you are ever in a position that involves real responsibility with the power to influence any other person's life.

By openly indicating that his lab wanted to be a part of the case and get work from the DA, Mr. Meecham opens himself up to a "bias" cross-examination, i.e., he would do everything possible to tailor his report to help the DA to make sure that he gets more work from the DA in the future.

It appears that his report omitted material information helpful to the accused, which fits perfectly into the line of questioning noted above.

These are facts - absolutely relevant and permissible to bring up in Court.

To 11:43 I do not think that KC has said that the company is necessarily corrupt because of the specific issues you mentioned. It is more a matter of first noticing that they really seemed to behave in a corrupt fashion and then looking for their motivation for doing so. Being a struggling start up is fine, per se. This is America. But when we consider that the main customers of an outfit like DNA Security are in law enforcement, we can at least be suspicious about the exact form their eagerness to please might take. They blatantly violated their own written policies in the way they reported their findings, on two occasions, immediately after hard-to-explain face to face meetings with Nifong. Seeing Red Flags all over that does not need even a trace of paranoia.Res ipsa loquitor, even.

I'm not bothered by the concerns over privacy and costs of producing the material. Both of those concerns should have been raised by Meehan, the privacy concerns for the tested people and the costs so that Nifong wouldn't try to stiff him over an extraordinarily high bill. The privacy concerns were handled with a protective order (which has been violated by someone by the way since the list of tested people in the report in now on the internet). Nifong's motivations were different, of course, since he hoped (slimly, probably) the court might deny the motion, and he wanted to delay the full disclosure as long as possible, to avoid having it come out before the general election on Nov. 7.

I might be more interested in the part of the transcript from that day where Nifong tells the court his first meeting with Meehan only concerned whether or not Meehan could do the tests. According to Neff, most of the tests were already completed when Nifong drove up there the first time.

Being a start-up is fine. However, in certain industries you might want to avoid start-ups in certain situations. In an extremely high profile case, where DNA is a central issue, it makes sense to avoid a start-up and go with a brand name. That is particularly true given that in Texas, among other places, scientific experts not part of a substantial enterprise have engaged in massive fraud.

I think you are missing Johnson's point. If a start-up is chosen because they are good, or recommended, or because they offer special services or expertise, or because they are the right fit, that is just fine. In this case, when the lab chosen was particularly vulnerable to financial pressure, reflected that vulnerability in notes offering reduced prices (try to get a major testing house to vary prices to get a job), and that we now have documented proof that, whatever the motive, the start-up did not include all the results in the report, you have to wonder about Nifong's motive in choosing them and the nature of the unrecorded interactions.

In the real world, as you put it (and I live and work in the real world) start-ups are often in a desperate race for survival with many opportunities to take short cuts. Did that matter here? Not yet determined, but I do not believe K.C. is off base as identifying that as an issue.

KC is on point again. The trolls are spinning their wheels. Nifong can not make any special arrangements with ANY vendor. He can not make verbal arrangements and comments to withhold from the Defense. The lab is to be 100% impartial. Just the fact that Nifong went there is a violation of ethics. The fact that items were omitted are PROSECURIAL MISCONDUCT!

Now Meehan is in the hot seat. If he plays stupid or can't remember, he loses his company(via integrity). If he gives a full explaination he will probably be indicted. Then he will lose his company anyway. Integrity is everything and that is gone for this Co. Nifong will not do one thing to fix it. He is a coward.

While I cannot speak for K.C., it seems to me that Nifong was anxious to use a lab that, at least in retrospect, was not the best choice if he wanted a private lab. Furthermore, it seems, at least on the surface, that Meehan was willing to compromise some integrity in withholding material from the defense.

Whether the lab was in a garage or under my magnolia tree, the issue here is the lab's withholding of information from the defense, and not being truthful about it. We have to remember that we are dealing with a serious case of prosecutorial misconduct.

I understand the point that people are making when they say the garage issue is irrelevant, and on one level it is. However, I would like to have seen a lab that was not so anxious to jump into a high-profile case with terms that were friendly to the prosecution.

It seems realistic that a DNA Lab would point out the issue of 'privacy'.

But it seems very unrealistic that the Lab would 'argue' the privacy concerns - especially since they're merely responding to 'da law' - sadly, Mr Nifong in this case.

Instead of the Lab's staement that "a blanket discovery of the entire case file...could jeapordize the privacy of these same individuals" -- an impartial response would have been more like, "the individual's privacy protections are the customer's responsibility" -being responsive, but indemnifying themselves.

Its apparent that the Lab knew directly or indirectly (wink-wink) what Nifong wanted - and it will be quite the show when Meehan is deposed at some future point.

They will express disgust with Nifong, and support (anonymously) the evidently innocent lacrosse players, but they remain wary of KC and other bloggers for fear that the spotlight of truth and accountability will again shine upon their dark recesses.

I am a scientist. It's very simple to see the problem here - both the SBI issue raised by KC and the question of eagerness and price discounts are significant indications of bias. The first rule of any scientific experiment is to identify and, when possible, remove bias. When not possible to remove it, state it and understand that your results are not unbiased and therefore cannot be taken as absolute.

KCI wanted to know if anyone has a link to Gottlieb's report(notes). It is now in the N&O that Gottlieb, Hinman and Nifong met with Meehan on two occassions. Are these meetings even mentioned in Gottlieb's notes? these notes were produced in July yet the meetings took place in April. I would be interested to see what Gottlieb "recalls" of these meetings. Anyone with a link to Gottlieb's report? Please post. Thanks

It would not surprise me at all if one C. Destine Couch hit it a few times and his is some of the DNA that needed to be "protected." After all, he graduated from the same HS the same year as the FA and we all saw his perverted myspace site and are aware of the sexual harassment charges against him.

I have no proof of this, but it just makes me wonder. I mean, I have heard that the FA is "pretty familiar" with members of the DA police department.

Ironically, I am in the middle of grading statistics tests, and the issue of bias always is front-and-center. Since the genesis of the relationship between Nifong and Meehan -- as well as the relationship that developed -- is not exactly what one would hope to see in this situation, I cannot help but wonder about the bias.

Now, we know that the lab was sloppy, and the inclusion of Meehan's DNA in one of the tests tells me that he screwed up somewhere (of course, Nifong could try to charge him with rape, since there is a DNA connection). However, given the nature of this relationship, it would seem that if there was to be bias, it would be in favor of the prosecution.

Instead, we see everything from the prosecution being shot down. Everything. In other words, even when Nifong wanted rigged results, he still could not get them.

. . . we need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to incident – with witnesses.”4/17/061549 hrs.Doesn't Soucie's note demonstrate they were investigating with a preconceived outcome?

At the very least, it showed that he was nervous and wanted to find a way to hide evidence if it was inconvient to his theories. One does not "nail down" a hypothesis; one checks to see if the hypothesis is true. There is a world of difference between the former and the latter.

Okay, I am beating a dead horse but please bear with me...11:31, my husband was sought as a medical expert by my childhood friend's sister to review injuries her child sustained in a fall--the resident on duty said it could be child abuse. The authorities took the child away pending a court date. My husband reviewed the injuries and determined the likely cause (which were, duh, a fall, and not child abuse.)

Did my husband testify? Of course not. Because of the relationship--however distant--between the accused and my husband, he felt ethically bound to recommend another physician to testify so as to remove any appearance of bias.

That is what ethical professionals do--no matter how much you want your business to grow you don't prostitute yourself.

Can someone please clarify which sample did Meehan's DNA appear on. Is he the owner/director plus the person conducting the testing as well as communicating with LE and Nifong. Boy is he a busy guy. Is his company a staff of one?So did he contiminate the sample? please help.

I don't read too much into the discount pricing. It appears the lab usually priced its services as a package (i.e. up to X tests/items for a flat fee of $Y), but that due to package pricing wouldn’t be available to Nifong and Co. because of the abnormally large number of items and tests (how many cases ever involve DNA from 42 suspects?). In negotiating a per-item/per-test rate to apply to the special situation, the Company indicated that it was willing to be somewhat flexible because it wanted to land the unusually large, high-profile contract. My guess is that every DNA lab in the country would feel the same way. And given that every private expert has to negotiate a fee in any trial – it just doesn’t strike me as that inappropriate (typically it’s the higher rates that suggest corruption). I wouldn’t be that surprised if any of the defense attorney reached similar arrangements with their client.

I also think its somewhat misleading to say that the Company “had financial problems almost from the start,” because it implies those problem are ongoing. According to the article that KC cited, the financial difficulties were mainly due to the capital costs associated with increased growth. But Meehan sold the Company to a buyer that could secure the needed capital a couple years ago. Ever since the has been growing rapidly (they’re up to 20 employees, have moved to a bigger space and expect to double in size in the next year). These aren’t the typical hallmarks of a firm in financial distress.

I think this is another instance where the basic facts are so bad that there’s no need to stretch. And I think anything that even looks like stretching is more of a distraction then a help.

As I stated before, the big story is not the lack of DNA matches to the three accused. Rather, it is that the accuser lied to the police about her sexual encounters (which would explain some of the vaginal trauma), and we had the DA withholding evidence that he said did not exist.

If Filan is that stupid, then she needs to be cleaning toilets at the Holiday Inn. (I do not say this to insult those women who are cleaning toilets there, as they most likely would have figured out by now that this whole thing is a hoax.)

To an extent I agree with you. However, what is being called into question are the incomplete records handed over after DNA Security fought for the job. Had they handed over a complete report on day one and had they not met with Nifong twice after running virtually all the tests, nothing would be in question.

So if this was just a matter of being part of a high profile case and dropping the price a tad bit I doubt anyone would point a finger. However, because DNA Security participated in obstruction of justice by not handing over the full report, ALL actions come into question and consideration.

2:36 is right. If Nifong had NOT basically rigged the lineup, had he NOT been violating ethics codes right and left, had he NOT suddenly changed the story and timeline of the non-rape, had he NOT called the lacrosse players hooligans, etc., then perhaps we might believe him when he says he did not get this information until the fall.

However, given the man's track record in this case, I think we are within our rights to question everything he says and to assume he is lying.

Since (as I understand it) Nifong did not have "that" evidence to give the defense, it seems he could not have been "withholding" it.

I suspect Nifong had to be aware of the exculpatory evidence, and he was careful to ensure it would never be "in his hands". - Nifong is no dummy - a schmuck, yes - but he knows how to insuulate himself from 'the trail of bad faith'.

It seems that a deposition, however arrived at, of the officials involved in the SBI 'field trips' will flesh all of this out - but it seems we have a ways to go to get there.

On point is that the AV blew any credibility her supporters hoped she still had since she 'outright' lied to police about on a very critical matter - her recent sexual activity.

At this point, Nifong could back out and claim he was "wronged" by he AV and SBI Labs - as big a laugh as that is -

Those of us familiar with the story will find nothing particularly new, but I am glad to see it in print.

Second, my guess is that Nifong DID have the relevant information, but tried to withhold it. Look, the guy already has proven to be a crook, so why not one more log on the fire?

Third, he is very competitive, and he wants to win this case. It is the ultimate challenge to a prosecutor: win without evidence.

The way he wants to do it is to inflame the blacks on the jury, and then try to hope the deadlocked jury votes the defendants guilty of "something" in a compromise verdict. I have seen this before, and it is sickening. Remember, North Carolina is the state that gave us guilty jury verdicts in the Little Rascals case, so all I can say is that North Carolina juries are capable of immense evil. (As are juries of other states. I no longer trust anything about the state or federal justice system in this country.)

I'm not letting Nifong or the lab off the hook. Their behavior stinks of a concerted coverup. I just think that their actions speak for themselves without having to grasp at straws to imply the Company was some fly-by-night operation on the verge of bankruptcy. Instead, the source that KC cites suggests the Company had done quite well since it was acquired and has a financially secure parent.

As to why Nifong chose this particular lab, I suspect it had to do with the number of testing facilities offering the specialized Y-chromosome testing within a half-day's drive of Durham. Given that the State Crime lab doesn't have the capacity to do this sort of testing, there can't be too many competitors.

With all that said, the evidence of ethically dubious conduct(especially by Nifong) seems so straight forward, that I think it actually detracts from the force of those facts to devote a full article to pointing out flimsy evidence of the lab's motive. Isn't the lab's motive obvious? There's just no need to stretch here.

Look whenever a jury gets a case with mutiple charges, then they find the defendant/s guilty of something. If they are on trial then they are guilty of something. Maybe they will have to wait 5 to 10 to go back to college.

Kidnapping compromise--all the better reason to have a bill of particulars,if the indictment does not specify when the alleged kidnapping took place. Holding her in the bathroom no longer holds water and I am sure that was the original theory. I wouldn't want Nifong to be able to shift to a theory that carrying her from the steps to Kim's car was against her will and therefore kidnapping.

Firstly, it must be profoundly embarrassing for Meehan's DNA to be contaminating the exhibits. That's ruining the evidence.

Secondly, if Nifong and Meehan met, there must be some pretty interesting contemporaneous notes of that meeting. If Meehan failed to disclose tests results on a personal whim, Nifong is in the clear; but Meehan's firm is busted. If Nifong told Meehan to avoid identifying other people, that's meehan in the clear, but Nifong in trouble.

If no-one took notes of the meeting, it is a he-said, she-said, and it will get messy.cheers

Copied from a liestoppers post....This is a quote from Meehan's letter that Nifong read in court when he was arguing against the defense motion to get the lab to provide the rest of the DNA data...it shows that Nifong was thinking ahead--he knew he (and Meehan) had withheld exculpatory evidence, and he was positioning it so he had an out if he got caught....

"We [Meehan's company] limited our formal reports to the evidence items and only the persons tested that could be linked to the evidence through the DNA testing results"

This case is starting to unfold like a poorly written novel. Kudos to KC Johnson for pointing out the facts of this case and taking those to task that continually try to hide those facts. Unfortunately, Mr. Nifong is so politically invested in this case as are the left leaning Duke faculty, that they now are in the position of ignoring the DNA results as those results now interfere with their agendas. Mr. Nifong will not do the smart thing and drop the case, instead he will probably do the politically expedient thing and assign it to an assistant prosecutor to lose, allowing him to save a little face. One thing that is clear, that Mr. Nifong will face a serious civil case from the defendents families once they are aquitted. Quite possibly he will face a federal investigation. The recent news of the DNA report, the caliber of the lab, the witholding and possible altering of the report will only add to Mr. Nifongs problems. The defense attorneys will carve him up and we get to watch.... Goody.

OT, but does anyone know how the number of applications for early admissions to Duke compare to last year? Regular apps aren't due until after the holidays, but enquiring minds want an early indicator.

I think many are missin the point on the gararge issue. Yes, many great companies have been started in one's own garage. But when your companies main purpose it to analyze DNA that can easily be contaminated you need an absolute sterile enviroment, for a high profile case like this with 3 boys lives on the line you would expect state of the art equiptment. Nifong purposely chose this garage setting so he could control the outcome of the DNA results, so he could wave some money in front of Meehan and get him to cut corners and do his bidding. Would you want to have someone operate on you in a gararge or a sterile hospital. Forensics is a highly sterile field that requires expertise and concentration on details.

"We [Meehan's company] limited our formal reports to the evidence items and only the persons tested that could be linked to the evidence through the DNA testing results" What does the statement above mean?Who was linked to the evidence through the DNA testing results?

Does anyone know what Shep was talking about on Studio B today re: this case and breaking news any minute that didn't happen? And then something about crossing T's and dotting I's when we send him those e-mails? He kept teasing breaking news and nothing ever happened. What was up with that?

"The D.A. is not withholding crucial evidence from the defense. My position is the D.A. may have a work product privilege which precludes him from having to disclose the contents of his conversations with witnesses when preparing their testimony for trial.

More importantly, the D.A. has no reason to withhold crucial evidence from the defense. A prosecutor who plays such a foolish game risks having that evidence precluded at trial."

The withheld evidence noted in yesterday's pleading that you fear would be subject to exclusion at trial is actually exculpatory evidence. Nifong wants that excluded. Punishing him with exclusion is doing him a favor. That is why the penalty for withholding exculpatory evidence is dismissal with prejudice, rather than the penalty you suggest, of having it excluded.

to 5:12--the statement means the only results the lab ever intended to put in its report were results that showed a positive DNA match to a sample given to them--in other words, they are saying they NEVER intended to report on unknown DNA (e.g., all the male DNA that was found that was from an unknown source.) They were only going to report on matches to the known samples (i.e., the lax players.) This quote was in the statement Nifong read to the court at the last hearing when he was arguing that they shouldn't have to provide all this data to the defense. They were already laying the groundwork for the excuse as to why they never put this DNA evidence in the report...and why they never gave it to the defense.

What evidence is there of a kidnapping or sexual contact? There is no DNA of any kind from the three accused on this woman. The only kidnapping that is happening involves the kidnapping of the civil rights of the accused.You know the woman is lying, yet still want a conviction - any conviction - you are disgusting.

The duke guys were in the house and the victim was in the house. They kept her in the house against her will, then tossed her out the back door, where she fell and another party goer took her pic. That should be good for 5 to 10 and the 3 guys will learn a lesson in life.

theman: the only reason that Durham still wants a trial is so the NAACP, and the NBPP can buy off the jury just to get a guilty verdict in this case, evidence be damned. YOU MAKE THIS TRUE VICTIM SICK.

So I guess Susan Filan now thinks that Nifong is playing foolish games.

I especially like the quote at the end of her piece where she says (to paraphrase) that justice is not hide the ball. That's quite fitting right now.

I sure hope that she has the courage to write about it now. But after all, we have learned from the brilliant Karla Holloway that white innocence means black guilt. So, maybe this is still too politically incorrect to touch for a legal analyst with NBC.

Since Reade Seligmann has proof that he was not even there when the AV left the house, how in the world can he be guilty of kidnapping. You know something, you are no different than the jurors and prosecutors and their supporters in the Scottsboro Boys case. No different at all, except they were white and you are black. But the same vile nature lurks within.

Folks, it is time, as they say in show biz, to get out the hook. Time to pull Liefong off that damned stage and into the next stage of his life.

I spoke to a local prosecutor tonight, and he told me that Nifong at very least needs to be disbarred. I suspect this guy would love to prosecute a rogue like Liefong, but he figures that disbarment is about the best he could do right now.

My wife and I went to hear the Moscow Symphony Orchestra. (Yes, they came to Cumberland!) Betcha we had a better evening than did Liefong.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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